NEW DELHI: In November 1987, speaking in the Bombay suburb of Villa Parle, Shiv Sena supremo Bal Thackeray declared that his party is contesting elections“for the protection of Hinduism, … we do not care for the votes of the Muslims. The country belongs to Hindus”.

He went on to state that you will find temples if you dig up mosques and to benefit the Hindu community, Ramesh Prabhoo must be led to victory.

The Bombay High Court declared the election of the Sena candidate Ramesh Prabhoo void on the grounds that such appeals were contrary to the provisions of the Representation of Peoples, Act, 1951.

On 11th December 1995, a Supreme Court bench presided by late Justice J.S. Verma upheld this judgement of the Bombay High Court. While the Supreme Court recognised such speech as unlawful, the judgement inadvertently but ominously used the words Hinduism and Hindutva interchangeably recognising these ideological terms as being synonymous with the Indian way of life!

The court decided that using the term Hindutva in electoral appeals is lawful as the term includes all communities in India.

In January 1996, legal luminary V.M Tarkundey writing in the PUCL bulletin read this judgement as a blow to our secular democracy.

He correctly argued that Supreme Court’s decision implies that a candidate could rightfully declare that he believes in Hindutva;voters could cast their votes on the same ground. And yet the candidate would not be committing any corrupt practice under the Representation of Peoples Act, 1950 (RP Act) as the Court would believe that the person is referring to the culture of all Indians people including Muslims, Christians and all other non-Hindu citizens!

This equating of Hindutva with Indianness’ was a shot in the arm of the Bharatiya Janata Party led Sangh. Since then they have used this judicial interpretation of the term “Hindutva” to justify a divisive poll strategy.

20 years later, the Chief Justice of India is currently presiding over a constitution bench of seven judges to re-examine the judgement in Ramesh Prabhoo.

The Bench will examine section 123 (3) and (3A) of the RP Act that, the former section states that appeal by a candidate to vote or refrain from doing so on the grounds of religion, race, caste, community or language would be considered unlawful. And further that promotion of feelings of enmity between different classes of citizens on the above stated grounds would be considered corrupt.

The important question that arises is how has the judiciary interpreted the constitutional mandate of secularism while adjudicating on the above statutory provisions?

The Supreme Court since Kesavananda Bharati has repeatedly held that secularism is part of the basic structure of the constitution and hence an eternal and inalienable constitutional principle. In fact, during the ongoing hearing Justice Chandrachud asked senior advocate Shyam Divan: “The right to contest is a statutory right and Secularism is a basic feature. Can we give an interpretation that does not further the cause of secularism?”

Let us examine how in the earlier judgement of Ramesh Prabhoo, the court dealt with secularism. The Bench delved into historica land religious work on Hinduism. Relying on scholars such Toynbee, Monier Williams, Dr. Radhakrishnan etc the Court opined that Hinduism (as per the court interchangeable with Hindutva) embraces within itself many diverse forms and faiths and that Hindu religion is impossible to describe as one philosophical concept. Now that the plural nature of Hinduism was determined, the Bench concluded that the use of such a term in election campaigns cannot be considered unsecular.

There are two major problems with such an interpretation of secularism. First, that it does not consider the diversity and plurality of communities in India. That the view is mono-culturalist and does not account for the constitutional recognition of different communities.

Secondly,it understands the term Hindutva as being the same as Hinduism. The judgement in an attempt to sanitise the ideological term Hindutva, glossed over the communal hatred embedded in the philosophy of Hindutva. In fact,AG Noorani pointed out the fact that the Bench made no mention of V.R. Savarkars essay on Hindutva, the man who is considered the founder of the ideology of Hindutva prevalent today!

The court in its endeavour to demarcate the term Hindutva from the prevalent political Hindutva of the Sangh ended up recognising the candidates legal right to seek election on the promise of Hindutva rule.

In the current political context, it becomes critically important that the current bench lay down the law on whether religious identity of any kind can be used to garner votes without it communalising the electoral process and thereby damaging the constitutional principle of secularism.

(Abhik Chimni is a Lawyer practicing in the Supreme Court of India)